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Tackling Pollution in China's 13th Five Year Plan: Emphasis on Enforcement

Barbara Finamore's picture
Senior Attorney NRDC

Barbara Finamore founded NRDC’s China program, focusing on climate, clean energy, environmental protection, and urban solutions in China. She also leads NRDC’s Green Ports project in China, which...

  • Member since 2007
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  • Mar 14, 2016
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Source: Beijing air (egorgrebnev, 2014).

Air pollution continues to plague vast regions of China, but the country is making visible progress. In apress conference in Beijing recently, Minister of Environmental Protection Chen Jining reported that average ambient levels of PM 2.5, the most dangerous air pollutant, were down by 14.1 percent in 74 key cities last year, the first year after China established a national PM 2.5 standard of 35 ug/m3. The Pearl River Delta region actually achieved overall compliance with the national standard. These results were corroborated by US NASA satellites, which observed apparent reductions of particulate matter in eastern and central China.

There is still, however, a long way to go, as more than 80 percent of about 300 cities failed to meet the official standard of air quality last year. China’s draft 13th Five Year Plan (2016-2020) for economic and social development, which will likely be approved by the National People’s Congress early next week, includes a number of environmental targets that are stronger than those in the previous Five Year Plan. Emissions of two key air pollutants – sulfur dioxide (SO2) and nitrogen oxides (NOx) – for example, must be reduced by 15 percent by 2020. The air quality of all cities at the prefecture level and above must meet “good” or “excellent” standards 80 percent of the time. If these cities fail to meet China’s annual PM 2.5 concentration standard, they must reduce their concentrations of this pollutant by 18 percent over 5 years.

When combined with the Five Year Plan’s strong focus on clean energy, energy efficiency, and carbon emissions intensity reduction, the Plan represents an important step forward in China’s war on pollution. Yet perhaps the most striking feature of the new Plan is its emphasis on enforcement. Premier Li Keqiang set the tone in his report to the National People’s Congress at its opening session on Saturday:

We must ensure that the newly revised Environmental Protection Law is strictly enforced, that those who emit pollutants beyond the limit allowed by their permit or without a permit are severely punished, and that those who knowingly allow such violations are held to account.

As I explained here, the game-changing amendments to China’s bedrock Environmental Protection Law (EPL) that went into effect in January 2015 put powerful new tools into the hands of environmental officials and the public, providing a strong legal foundation to China’s pollution control efforts. Most notably, the revisions make three critical improvements: 1) they add a new fine penalty system that will continue to accumulate for each day the pollution violations continue (by eliminating the previous one-off fine system); 2) they formalize a much-needed performance assessment system that is based on an official’s environmental protection record rather than solely on economic growth; and 3) they allow for nongovernmental organizations to take legal action against polluters on behalf of the public interest.

The newly amended Air Law largely reinforces the provisions of the EPL. The air law amendments approved by the National People’s Congress in September 2015 also established various legal mechanisms to improve ambient air quality, including:

  • Enhancing local governments’ responsibility for air quality management. The new Air Law includes a provision requiring the performance of local government officials to be rated on how well they meet air quality targets and key tasks, not just on GDP growth;
  • Formulating and implementing local attainment plan for non-attainment areas. The implementation progress of the attainment plan must be reported to the corresponding People’s Congress and disclosed to the public;
  • Reducing coal consumption and pollution. The law contains a specific section on reducing the consumption and emissions of coal and other dirty fuels. It states that the government should adjust the energy structure and increase the production and use of clean fuels, while gradually reducing the share of coal in primary energy consumption and reducing emissions from coal production and use;
  • Strengthening pollution control from mobile sources. The new air law requires the formulation of fuel quality standards to meet the needs of national air pollution control, and in line with the emission standards of motor vehicles and non-road mobile machinery; and
  • Sharpening the penalties for various violators. The total amount of penalty increased sharply for some violations, which established a sound basis for effective implementation and enforcement of the law.

The amended Air Law further emphasized and provided a legal basis for a number of measures included in the 2013 National Action Plan on Air Pollution Control, such as an air pollution warning and risk mitigating system, joint prevention and control mechanisms, new requirements for public participation and supervision, and a national carbon emission trading system.

The Ministry of Environmental Protection is also speeding up the preparation of amendments to China’s Water Pollution Prevention and Control Law and the formulation of a Soil Pollution Prevention and Control Law. A national action plan on tackling soil pollution, however, has been delayed for another year.

The 13th Five Year Plan fails to make much progress on controlling vehicle pollution. The draft Plan calls for strengthening enforcement of the national China V emission standards for gasoline vehicles. This provision, however, which is essentially unchanged from that in the last Five Year Plan, does not address pollution from diesel vehicles, nor does it call for the adoption of China VI motor vehicle emission standards, which have been under development in China for some time. China VI standards would require the use of highly effective after-treatment technologies and result in substantial reductions in vehicle pollution.

As vehicle emissions have become one of the most significant sources of air pollution in many major Chinese cities, the government may have missed a unique opportunity for not committing to further tightening the vehicle standards of cars and trucks to beyond China V/5 standards. The current standards in the U.S. and Europe have proved to be able to clean up PM2.5 from diesel trucks by more than 95 percent, and can effectively control volatile organic compounds that are one of precursors of ozone (and smog). If the central government could accelerate adoption of standards that are equivalent to those implemented in the U.S. and Europe during the 13th Five Year Period, the scrappage programs introduced in major Chinese cities could achieve much higher emission reductions and cities and provinces would be more enabled to achieve the ambient air quality standards in an earlier timeline.

China is making progress on environmental law implementation and enforcement: To implement the EPL and Air Law amendments, the Ministry of Environmental Protection (MEP) has adopted new regulations to enhance administrative penalties, establish compulsory administrative measures, strengthen information disclosure, and provide for the investigation and handling of environmental emergencies, including:

  • Measures for the imposition of consecutive daily penalties;
  • Measures for sealing up and impounding assets and property;
  • Measures for restricting and suspending production as corrective measures;
  • Measures for the disclosure of environmental information by enterprises and public institutions; and
  • Measures for the investigation and handling of environmental emergencies.

MEP reports that the implementation of these regulations has gone well and that China launched over 8000 environmental enforcement cases in 2015. In November 2015, for example, the number of daily penalty cases brought by environmental protection bureaus/departments increased by 34%. The penalties for violation totaled about 64.5 million Yuan (about U.S. $10 million). These agencies also brought 538 cases involving the sealing up and impoundment of assets, about 386 cases restricting and shutting down factories, and about 241 criminal cases that were transferred to judicial agencies.

In a case announced earlier this month, for example, a court in Zhejiang upheld a lower court’s decision to impose fines of 78 million yuan (U.S. $12 million) on three chemical companies that conspired to dump 26,000 tons of hazardous waste into rivers. Ten suspects, including the heads of the three companies, were sentenced to jail terms ranging from nine years to one year and 10 months, and fined a total of 8.5 million yuan.

This all represents major progress, but much more needs to be done to meet Premier Li’s requirement that all polluters are severely punished and held to account for their actions. Much of the problem can be traced to local protectionism. According to China’s longstanding administrative structure, local environmental bureaus report to (and are hired and paid by) local government officials who often have a vested interested in protecting the polluting industries in their jurisdiction. This is set to change under the 13th Five Year Plan.

Major reforms in China’s environmental management structure are underway: In his press conference today, Environment Minister Chen Jining announced a set of major reforms of China’s environmental management and governance system designed to strengthen enforcement. Most importantly, environmental enforcement and monitoring agencies at the city/county level will be restructured to report directly to provincial environmental protection departments (EPDs) rather than local governments. These reforms, which will be phased in on a pilot basis in 17 provinces/autonomous regions and completed nationwide in 2018, will be designed to achieve four major goals:

  • Improve the environmental responsibility of local governments and related departments;
  • Tackle the problem of local protectionism;
  • Further coordinate inter-regional and inter-basin environmental management; and
  • Standardize and strengthen capacity building for local environmental agencies.

At the central level, the Ministry of Environmental Protection has also restructured its Department of Pollution Control into three separate departments on water, soil and air quality management. This new structure can better facilitate the effective implementation and enforcement of environmental protection law and related regulations. The Plan also calls for the development of an environmental pollution governance system that includes third party auditors.

Public interest litigation provides an effective tool to improve administrative enforcement and environmental transparency. The new EPL includes important provisions that provide legal standing for environmental NGOs to bring public interest litigation against violators. Since the law went into force, a number of public interest litigation cases have been filed by local grassroots NGOs. Two pioneering NGOs, Friends of Nature and Fujian Green Home, filed the first lawsuit under the EPL Amendments in Nanping Municipal Intermediate Court in Fujian Province. The NGOs demanded compensation and ecological recovery of forest and land damaged by four defendants who ran an unlicensed quarry. The NGOs won the case after two trials and the verdict, announced on October 29, 2015, supported almost all the NGO claims and awarded compensation for environmental damage, ecological recovery fees and litigation costs. The victory of the case is a remarkable milestone for the enforcement of environmental public interest lawsuit in China.

According to the latest statistics, about 45cases have been filed by environmental NGOs and accepted by the courts at various levels, although the Fujiang Nanping case is the only one to receive a court judgment to date. Several cases have been settled under the judges’ mediation; others are in the process of case preparation and collection of evidence. The major challenges faced by Chinese NGOs include difficulties in filing the cases at the courts, collection and assessment of evidence regarding pollution levels and ecological damage, insufficient funding for lawsuits, lack of technical and legal background and knowledge and the burdens of supervision and monitoring of case enforcement.

New initiatives on administrative environmental public interest litigation. Another important pilot reform, launched in August 2015, authorizes people’s procuratorates in some provinces to bring environmental public interest litigation against administrative agencies, such as local EPBs, for their negligence in performance of duties. These successful pilot cases demonstrate that the procuratorates’ engagement will provide another powerful enforcement tool to combat foot-dragging and protectionism on the part of local EPBs. In 2015, local procuratorates have filed 8 administrative public interest lawsuits, and two of them have already been set for trial. On February 25, 2016, the Supreme People’s Court released the Implementation Measures regarding Trial of the Public Interest Litigation Lawsuits Raised by People’s Procuratorates. These Measures went into effect on March 1, 2016. The Measures will further promote administrative environmental public interest litigation pilot practice in 13 provinces.

The 13th Five Year Plan recognizes that public participation and open information are essential features of any successful environmental enforcement system. The Plan requires polluting enterprises to comprehensively disclose all emissions data online in order to enable effective monitoring. Strengthening public participation and environmental information disclosure is one of MEP’s key work plan/targets for 2016.

President Xi Jinping has adopted “Green Development” as one of the five key principles driving the 13thFive Year Plan. China’s leadership recognizes that environmental protection, rather than being a drag on the economy, is an essential prerequisite to ensure long-term sustainable economic development and prosperity for all. Going forward, the critical task for China will be to ensure that the environmental targets, standards, regulations and reforms set forth in the 13th Five Year Plan and associated measures are translated from paper to action and strongly enforced. This will require a strong regulatory approach as well as building up the capacity for enforcement and compliance at both the provincial and local levels.

This post was co-authored by NRDC China Environmental Law and Governance Project Director Wang Yan and NRDC Staff Attorney Wu Qi.

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Thank Barbara for the Post!
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